Tuesday, March 26, 2013

US Supreme Court Florida v. Jardines 11-564

Decision here.

   This is a K9 decision, but the court's reasoning has some pretty obvious implications that go well beyond the use of drug dogs.  This is one of those decisions that every officer needs to familiarize themselves with.

   Police received an unverified tip that there was marijuana in Jardines' house.  The detective working the case conducted surveillance on the house for a whopping fifteen minutes, saw no activity, and then approached the front door of the house with a K9 and his handler.  The K9 alerted on the front door, and the officers left.  They returned later with a search warrant.  They found a marijuana grow in the house, and Jardines was arrested.

   The trial court suppressed the marijuana, ruling that the dog sniff was an unreasonable search and that the warrant was invalid because the police obtained it relying on evidence from said unreasonable search.  This was appealed all the way to the Supreme Court.

   There are a couple of different ways that the courts decide whether or not a search has occurred.  The original test (which was recently reaffirmed in Jones) is the trespass test: if whatever the police are doing involves physically trespassing on someone else's property, then it is a search.  More recently, Katz created the reasonable expectation of privacy test.  Most cops are very familiar with that one: if a person can reasonably expect something to be private (like a phone call), then a search occurs whenever the police violate that expectation of privacy.  The important note is that the reasonable expectation of privacy test did not replace the trespass test, it simply added to it.

   The court explained that the curtilage is part of the home for Fourth Amendment purposes, and that laws regarding trespass establish that no one may set foot upon another's property without the owner's permission.  On the other hand, our culture has a sort of implied invitation to the front door.  Anyone can walk up to the front door of a house, promptly knock, wait a while to be received, and then leave (unless they are invited to stay).  This implied invitation is limited in terms of the areas that a visitor can go; you wouldn't expect someone to knock on your back door, hang out by your bedroom window, or just open the door and let himself in.  But this implied invitation is also limited in terms of purpose: just because we traditionally allow strangers to knock on our door doesn't mean that we would normally let someone run a metal detector over our front yard or run a drug detecting dog on our front door.

   And that was the deciding factor in this case: the police went way beyond the scope of what an average person would be entitled to do while physically intruding on the property of another.  This wasn't a case of knocking on the door to try to talk to Jardines, this was a search of Jardines' home which was conducted without a warrant, and without probable cause or exigent circumstances.  

   The prosecution tried to argue that the dog sniff is not a search because there is no legitimate privacy interest in contraband (this reasoning has been used to justify dog sniffs of cars and suspicious packages).  But the court merely pointed out that this case wasn't decided on the basis of Jardines' expectation of privacy.  When the police use dogs to sniff cars and suspicious packages, they are doing so without physically intruding on the defendant's property.  In this case, they were very clearly on the defendant's property.  That makes this a search, and since there was no legal basis for a search, the suppression of the evidence was affirmed.

Monday, March 25, 2013

Colorado Supreme Court People v. Pleshakov 12SA236

Decision here.

<personal rant, not really part of the summary>

   Ah, Miranda.  How I hate thee.

   Actually, that's not fair.  My problem with Miranda isn't Miranda.  My problem with Miranda is that most cops are so confused about it... they really have no idea when they need to read someone their rights and when they don't.  It's not that it's all that tricky, it's that for some reason a lot of cops are never really taught the right answer.  The confusing thing is that most cops are used to thinking about arrests in terms of the Fourth Amendment.  It's understandable... after all, Miranda sets forth the rules for when we can talk to people who are under arrests, and arrests are governed by the Fourth Amendment.  But an understandable mistake is still a mistake.

   For fourth amendment purposes, someone is "seized" (which can mean either arrested or detained) if a reasonable person in their position would not feel like they were free to leave (or otherwise terminate the encounter with the police).  Because of this, you get a lot of people who think they need to be read their rights any time they aren't free to leave.  The cops know this isn't true, but most of them don't know why (and since they don't know why, they end up applying Miranda incorrectly themselves).  Here's why: Miranda is a rule which the courts use to protect people's Fifth Amendment right against self-incrimination.  It has nothing to do with whether or not someone is free to go, the important question is whether or not a reasonable person in their circumstances would perceive that their freedom had been interfered with to the degree associated with a formal arrest.  I know that's a mouthful, but since the courts like to be as precise and all-encompassing as possible we end up with a lot of rules that you couldn't say five times fast.  It doesn't actually matter whether or not someone is actually under arrest, it's just if a normal person in their shoes would think they were going to jail.

   But I'm supposed to be summarizing case law here, not going off on my own tangent.  So I'll get to it.

<end of personal rant>

   An anonymous complainant in Aurora, Colorado reported that there was drug dealing afoot in an apartment complex.  The RP described at least two cars involved in a drug transaction, and said that one apartment in particular was the source of the problem.  Officers arrived, and stopped the two described cars as they were leaving.  The drivers of each of the cars admitted to buying weed from some guy named Dimitry who was in the apartment which the RP had pointed her finger at.  One of them also described Dimitry's car.

   Police saw Dimitry's car leaving the apartment complex.  Sgt. Redfearn pulled the car over a couple blocks away for a window tint violation.  The driver (who was not Dimitry) wasn't able to produce license, registration, or insurance.  Sgt. Redfearn asked if someone in the car had a license, and the passenger (Dimitry Pleshakov) produced his.  When another passenger stuffed something under the seat in the back of the car, Redfearn asked everyone to get out of the car.  Once they did, they were patted down for weapons and then directed to sit down on the curb.  Sgt. Redfearn pulled Dimitry aside to discuss the drug dealing with him.  Dimitry admitted to having weed in the apartment, but not to selling it.

   Sgt. Redfearn asked for consent to search the apartment, telling Dimitry that he thought he had enough evidence to get a warrant but it would be easier for everyone if Dimitry just gave consent.  He also suggested that if there was just a little bit of weed, Dimitry would probably just get a ticket.  Dimitry gave consent, signing a written consent to search form (after Sgt. Redfearn told him he could refuse and wrote "you have the right to refuse" on the form itself).  Dimitry wanted to be present for the search, and so he accompanied officers as they searched his apartment.  He showed them where he kept his gun (which they seized) and his weed (which someone else had already stolen).  He was subsequently arrested for distribution of a controlled substance, possession of a weapon by a previous offender, and for possession of an Oxycontin pill.

   The trial court suppressed all the evidence, finding that even though Dimitry's consent and incriminating statements were voluntary, he should have been read the Miranda warnings first because he was being detained (and no longer just for traffic).  The evidence was held to be fruit of the poisonous tree, since Dimitry's consent was given during this un-Mirandized interrogation.  The prosecution filed an interlocutory appeal, arguing that the court had incorrectly applied Fourth Amendement reasoning to Miranda.  So it isn't just cops who get confused about this one. :)

   Anyway, the Colorado Supreme Court held that Dimitry's freedom had not been restrained to the degree associated with a formal arrest, and therefore he was not subjected to custodial interrogation.  That meant that there was no need to give Dimitry Miranda warnings.  The trial court's order suppressing the evidence was reversed.

Friday, March 15, 2013

Colorado Court of Appeals People v. Bryant 10CA0417

Decision here.

   After following some girls around in public, grabbing them, and touching their genitals and breasts while they struggled to get away, Bryant was arrested for unlawful sexual contact.  Because he accomplished his crime by using force, it's a felony.  He was convicted, and he appealed.  His argument was that the evidence didn't show that he used force to cause his victims to submit to sexual contact.

   The court held that the sexual contact in this case (where the victims were struggling to get away) was in itself a use of force, and that the statute doesn't require an extra use of force beyond that.  Bryant's conviction was upheld.

Colorado Court of Appeals People v. Chase 09CA1908

Decision here.

   This is one of those cases where some idiot defendant makes every conceivable argument to escape the consequences of his actions, no matter how ridiculous he may sound.  Since the court has to address them all, it's really long.  Painful reading.

   Anyway, the facts: Jerry Chase was (is) a crazy 60 year old who lived in a trailer park.  After we was charged with criminal tampering (for pouring sugar in his neighbor's gas tank) and with violating a protection order (for shouting a racial slur at the same neighbor), he was evicted from the trailer park.  Apparently, he was out of state when he found out about the eviction.  Like any rational adult would do, he fired off a series of six emails over two days to the trailer park manager, the maintenance worker who posted the notice, the neighbor who he had been harassing, and a bunch of other people.  These were wickedly threatening emails which alluded to Chase's past arson convictions, included a picture of someone pointing a gun at a judge (not sure why a judge...), had a lot of profanity-laden threats and demands to lift the eviction.  The threats were primarily directed against the couple who managed the park and the maintenance worker.  Two of them also happened to be out of state when they received the emails, but not the third.  They were all pretty freaked out about the threats.

   Surprisingly, acting like an immature ass didn't help Chase's cause.  Instead of getting the eviction notice lifted, it got him arrested for three counts of stalking.  He was convicted by a jury and sentenced to 12 years in prison.  He appealed.  Here are a few of his arguments:

   First, he argued that since he was out of state when he wrote the emails, and two of his victims were out of state when they read the emails, Colorado didn't have jurisdictio because none of the elements of the crime occurred in Colorado.  The Court of Appeals held that although the emails were neither written or read in Colorado, the result of the emails (causing his victims to fear for their safety) did occur in Colorado.  And since that result is one of the elements of Stalking, that means that part of the offense occurred in Colorado.  And if part of an offense occurs in Colorado, then Colorado has jurisdiction.  The court also noted that although email can be accessed from anywhere, Chase sent the threats to accounts of people who he knew lived in Colorado, and who he thought would be in Colorado.

   Chase also argued that the evidence was insufficient to prove that he made a credible threat.  The content of the emails and the effect that the emails had on the victims was held to be enough to demonstrate a credible threat.  Chase argued that there was insufficient evidence to show that he made repeated communications because (get this) his victims opened all the emails at the same time.  The court held that six separate emails over the course of two days constituted repeated communications.  He also argued that he should have been convicted of misdemeanor harassment instead of felony stalking, and that convicting him of a felony when his conduct met the elements of a misdemeanor violated his equal protection rights.  The court pointed out that harassment and stalking are related offenses, but that they have different elements and are different crimes.

   Also, Chase argued that his emails were protected by the First Amendment.  The court pointed out that freedom of speech is not absolute, and does not protect true threats (speech that a reasonable speaker and a reasonable recipient would perceive as an actual threat of harm).  Since Chase's emails were true threats, they were not protected speech.

   Chase's conviction was upheld.

Monday, March 4, 2013

Tenth Circuit US v. Barajas 12-3003

Decision here.

   The DEA was investigating a conspiracy to distribute meth, and the investigation involved lots of wiretaps on cell phones and pinging phones (which the decision describes as a way to query a phone for GPS data).  All of this cell-phone-voodoo was authorized by court orders issued in California, although the charges landed in the tenth circuit because there was a pretty significant seizure of meth and cash in Kansas City which was tied to the conspiracy.  Anyway, Barajas was identified and arrested based on evidence obtained from secretly listening to phone calls and pinging his phone.  He moved to suppress the evidence, he lost, he was convicted at trial, and then he appealed.  

   He argued that pinging his cell phone was a search.  The tenth circuit assumed without deciding that pinging cell phones is, in fact, a search.  Apparently courts around the country are still mulling that question over.  I don't see how anyone could seriously argue that pinging a phone is not a search, but I'm not a lawyer.  But for going-forward purposes, we know that the tenth circuit is humoring the idea that pinging is a search, but hasn't completely made up its mind.  Do with that what you will.

   Barajas also argued that the affidavits which supported the wiretap orders were insufficient.  He argued that they didn't contain probable cause, but the tenth held that they did.  He argued that they didn't explain why a wiretap was necessary (one of the requirements of both California and Federal wiretap laws is that you have to show why more traditional investigative techniques won't work), but the tenth held that the affidavits met that burden too.  Barajas pointed out that the affidavit didn't even request authorization to ping the phones.  The wiretap orders did authorize phone pinging, but there was no request anywhere in the affidavits requesting that authorization.


   The Tenth pointed out that even though the affidavit didn't specifically request that authority, the court could still grant it if the facts contained in the affidavit established probable cause to search the phone's GPS.  The court could rely on the same facts that were used to show PC to listen in on the conversations, as long as those facts showed a fair probability of a nexus between the phone's location and criminal activity.  The court even went so far as to say that next time the officers might want to include in their affidavit something explaining how they could use the GPS data to identify the suspect (since at the time they only knew his nickname).  But the court hesitated to say that the affidavits established PC for the phone ping.  In the end, they decided not to make a decision about that.

   Instead, the courts ruled that the officers' reliance on the warrant invoked the good faith exception.  The affidavits might not have been the best work (despite averaging 115 pages), but they weren't plainly defective either.  They were good enough for the cops to reasonably rely on the warrants, so the court held that whether they actually showed PC for the authorization of phone pinging or not, they were close enough that the evidence is admissible.

   Barajas' conviction was affirmed.